This Civil Revision Petition has been filed by the petitioner against the order made in I.A.No.221 of 2006 in A.S.No.37 of 2006 on the file of the Sub Court, Ambasamudaram, dated 21.02.2007. The petitioner herein, is the plaintiff in the suit. He has filed the suit for declaration and permanent injunction in O.S.No.505 of 2000 dated 26.11.2000, on the file of the District Munsif Court, Ambasamudaram.
2. The said suit has been dismissed and being aggrieved of the same, an appeal has been preferred in A.S.No.37 of 2006, on the file of the Sub Court, Ambasamudram.
3. Pending the appeal, the petitioner has filed an application on 21.02.2007, seeking appointment of Commissioner on the ground that earlier appointment of Commissioner made was not proper. The Court below has dismissed the said application and being aggrieved of the same, he has preferred the present Revision Petition.
4. The learned counsel for the petitioner submitted that the petitioner has filed the application in view of the fact, that the suit filed by him has been dismissed. Therefore, the application for appointment of Commissioner is necessary in order to find out as to whether there is any other alternative pathway as contented by the defendants or not. According to the learned counsel for the appellant an appeal is a continuation of the suit and therefore, the appellate Court could exercise the same. Power of the trial Court as reported in 1993 (2) Law weekly 59 (Devagiri Plantations Ltd., Nagercoil by its Managing Director D.Subramaniam and another Vs. State of Tamil Nadu rep. by the District Collector of Kanyakumari District.)
5. The learned counsel for the respondents submitted that even pending the suit, not only the Commissioner was appointed but warrant has been re-issued to him and only the subsequent report was marked before the Court. According to the learned counsel for the respondents, the petitioners cannot collect any evidence as against the respondents.
6. The learned counsel for the petitioners submitted that having warranted a decree against them, the petitioners cannot file their application except to contend that the judgment and decree of the Court below is wrong.
7. An application for appointment of Commissioner cannot be made to collect the evidence and such application cannot be maintainable and in earlier occasion, a Commissioner is appointed and the warrant has been re-issued to him. As contented by the learned counsel for the respondents the petitioners cannot seek appointment of Commissioner to prove the case of the defendant that there was no existence of the pathway as contented by the defendant. It is for the plaintiffs/petitioners to prove their case. Under those circumstances, this Court finds that there is no illegality or irregularity in the order passed by the Court below. Accordingly, the Revision Petition deserves to be dismissed.
Accordingly, the Civil Revision Petition is dismissed. Consequently, connected Miscellaneous Petition is also dismissed. There shall be no orders as to costs.
DP To The Subordinate Judge, Ambasamudaram.